The Economic Freedom Fighters filed papers in the South Gauteng High Court on Friday arguing that a previous court ruling, which found that the party had defamed former Finance Minister Trevor Manuel, was wrong.
The court had ruled that the EFF had made an “unlawful” statement against Manuel when it claimed that Manuel, the head of a selection panel which interviewed candidates for the top job at the SA Revenue Service, had favoured the successful candidate, Edward Kieswetter.
The court ordered the EFF to remove the statements from all its media platforms and apologise to Manuel within 24 hours. Manuel is also entitled to damages of R500 000. The EFF said shortly after the judgment that it would apply for leave to appeal.
The selection panel Manuel headed up was appointed by Finance Minister Tito Mboweni. It made recommendations but did not make the final decision.
Manuel has since told Fin24 he was keen to donate the money to victims of the VBS Mutual Bank collapse. The bank made headlines in a scandal that saw almost R2bn being looted, impacting some 22 000 depositors, mostly the poor in rural areas.
Here are 7 reasons, according to the EFF’s appeal papers, why the party thinks it was right to call Manuel out in terms of Kieswetter’s appointment:
1. Harm? What harm?
The EFF argues that Manuel did not present any evidence of harm against him in terms of the EFF’s “defamatory” statement.
“In particular, Mr Manuel adduced no evidence to demonstrate that he ‘has suffered and continues to suffer harm to his reputation, both in his personal and professional capacity, through the widespread dissemination of the statement…’
The EFF also says there was no evidence in terms of Manuel attesting there was ‘ongoing harm to the well-being of the country as the public (laboured) under the misapprehension that SARS is led by a person who was appointed for nepotistic or corrupt reasons’.”
2. Manuel’s recusal from Kieswetter’s interview
“It is common cause that Manuel did not participate in the interview of the new SARS Commissioner but was present when it occurred. It is also common cause that Mr Manuel participated in the assessment of all the short-listed candidates, including the new SARS Commissioner,” the EFF’s papers read.
“This is not a recusal as recognised in law. A recusal is an irrevocable withdrawal from proceedings terminating the person’s continued participation therein. This is to avoid the perception of bias.”
The party also says that while Manuel himself said he recused himself from Kieswetter’s interview due to a personal relationship, had he not done so – the process would have been brought into question. Manuel, in his papers, had said that he had recused himself out of an “abundance of caution” even though the selection panel had not asked him to do so. This was because the two had previously worked together and had remained on friendly terms.
3. Political speech
It is the EFF’s case that its statement was “political speech” and therefore exempt from being considered as defamation.
“The respondents addressed the Court on the proper test to be applied to the statement, namely that it was political speech and, in the first instance, exempt from a finding of defamation. In other words, the position of the [EFF] was that the statement itself did not need to be supported by facts or explained away, as such, on account of its political nature.”
4. ‘Colourful, rhetorical style’
The EFF argues that its followers are familiar with its style and “colourful language”.
“The reasonable reader or ordinary intelligence would be presumed to have some political knowledge and experience, not only of Mr Malema but also of Mr Manuel’s political track record, which he had established over some 20 years in public service.
“Furthermore, those readers would also be used to the kind of language used by the respondents as being consistent with their colourful rhetorical style.”
The EFF argues that Manuel should have recused himself from the interview process entirely as the other shortlisted candidates were likely to be disadvantaged.
“On the facts of this case, the interview in question was held in camera. If anything, the fact that Mr Manuel continued to participate serves to underscore why he ought to have properly recused himself. Additionally, there are no facts on the papers to suggest that any other candidate shortlisted for the post of SARS Commissioner would have been aware of Mr Manuel’s relationship with and ‘recusal’ in respect of the successful candidate.
“Had they known such, they may have wished to seek Mr Manuel’s recusal in order to protect their rights. The secrecy of the process meant that the relevant candidates would not have known this – nor would any other interested person – with such disclosures being made after the fact. This serves to make the negative perception of Mr Manuel’s involvement worse, not better.”
6. Verifying the facts
“The Court heard no evidence from the [EFF] in respect of what steps they may or may not have taken to verify the content of the statement themselves…
“Thus the court, respectfully, had no basis upon which to determine that the [EFF’s] genuinely held belief and publication at the time was not reasonable, nor that they failed to take any steps to verify the content of the information received by their source.”
7. There was no malice
“Respectfully, even after the statement was demonstrated to be false, the [EFF] was under no obligation to take down the statement. The statement only acquired the legal effect of being defamatory when the Court declared it as such. The fact that the [EFF] did not take down the statement after Mr Manuel told them otherwise is irrelevant. Nothing turns on this.”